Update on permitted development rights for office to residential use

The planning use class system and permitted development rights allow the change of use of buildings without the need for planning permission in a number of circumstances. The former coalition government introduced a range of new change of use permitted development rights at the end of the last Parliament.

None of the changes attracted more controversy than the permitted development right for change of use from offices (B1(a)) to residential use (C3), subject to local planning authority (LPA) prior approval of certain limited matters. Importantly, when introduced the right was time limited. This meant that the use of the building approved under the prior approval would in practice have needed to have "begun" by 30 May 2016, because any use begun after that date would not be permitted.

On 13 October 2015 (the same day that the Housing and Planning Bill was published) a joint press release by DCLG and Brandon Lewis MP (for Housing and Planning) confirmed that this right would be put on a permanent footing.

The amendment order (the Amendment Order) to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) has been published. The Amendment Order will come into force on 6 April 2016.

The new permitted development rights in summary

The Amendment Order makes three changes which apply in England only:

existing temporary permitted development right to change buildings in office use to dwelling houses will be made permanent, with a condition allowing the LPA to consider certain noise impacts. The exemption from this right of areas listed in article 2(5) of the GDPO is removed with effect from 31 May 2019 (see endnote)

planning permission is granted for launderettes to change to dwelling houses, subject to the limitations and conditions of the relevant use class

a new temporary permitted development right for the change of use of buildings in light industrial use to dwelling houses is created, subject to limitations and conditions including the prior approval of the LPA in respect of certain matters

Further details are set out below.

Existing, temporary permitted development right for the change of use of office buildings to residential made permanent

The existing, temporary permitted development right in Class O for the change of use of office buildings to residential will be made permanent, with the inclusion of an additional condition which will allow the LPA to consider mitigation proposals in respect of any noise impacts from surrounding commercial uses on the intended occupiers of the development. The right is subject to prior approval from the LPA in relation to flooding, highway, transport and contamination impacts, and once the Amendment Order comes into force also noise impacts.

When the right was introduced in 2013, the areas listed in article 2(5) of the GDPO (see endnote) were exempted so that local planning authorities could protect office space in key business areas. The Amendment Order extends these exemptions until 30 May 2019 to give local planning authorities time to withdraw the Class O rights, where appropriate, by issuing article 4 directions in line with national policy, without incurring liability for compensation.

This change comes into force from 6 April 2016. It will mean that developers will have three years to complete conversions, and any current geographical exemptions from the rights will cease to exist in May 2019.

Noise impacts and licensed premises

Two reports relating to licensed premises have added significant fuel to the debate on noise and the permitted development rights. The first 'London's Grassroots Music venues Rescue Plan' (Mayor of London's Music Venues Taskforce) published last year suggested that while live music venues generate a significant financial contribution to the economy they were under threat and showed that their numbers had fallen over the preceding 8 years. A census of Bristol live music venues by UK Music published in March 2016 reports that 50% of the city's music venues were affected by development, noise or planning issues posing a direct threat to the 'vibrant ecosystem' which generated £123million in 2015 towards the local economy.

The issue is that in circumstances where residents move in to an area where noise is emanating from long-standing music venues, this can result in the LPA imposing additional licensing restrictions on the venue. Campaigners on behalf of licensed premises have long advocated support for implementation of an 'agent of change' principle to place the responsibility for noise management measures on the incoming business or individual.

Allowing the LPA to consider noise impacts on new residents from existing businesses in the area is a significant change in the current position. However, it has been noted that the change falls short of implementing the 'agent of change' principle. In practice, on an application for prior approval (when the change is implemented) it will mean that the LPAs will be permitted to – but does not mean that they must take into consideration the principle of the agent of change. If this is intended then there are likely to be differences in approach by different LPAs. This was highlighted in a recent debate in the House of Lords on the Housing and Planning Bill in which the Lords called on the Minister to provide further guidance on the interpretation of this particular change. We will have to wait and see if further guidance will be forthcoming.

Planning permission granted for launderettes to change to dwelling houses

Class M is extended to apply to launderettes subject to the limitations and conditions of that use class. This permits the change of use of retail, betting offices or pay day loan shops, and when the extension comes into force laundrettes, to residential. It allows for building works which are reasonably necessary to make this change. As is the case for other retail uses within Class M the new tight will be subject to a prior approval process which enables the effect of the development on the adequate provision of services to be considered.

Light industrial buildings to change use to residential

A new temporary permitted development right (Class PA) is introduced to allow light industrial buildings to change use to residential. This right is for three years, applying where an application for determination as to whether prior approval is required is made on, or after, 1 October 2017 and the prior approval date occurs on, or before, 30 September 2020. A number of restrictions and conditions apply, including that the gross floor space of the existing building must be 500 square metres or less and that the development must be completed within three years of the prior approval date.

The right does not take effect immediately to enable local authorities to issue a direction withdrawing the right under article 4 of the GPDO where appropriate, and in line with national policy. Separate amendment regulations will make changes that also come into force on 6 April 2016 which add the new Class PA to the list of permitted development rights for which compensation on withdrawal of the right is limited.

The new right enables light industrial buildings that may already be sited in residential areas to be used to provide new homes. It is subject to a prior approval process which enables the impact the change of use would have on existing industrial or storage and distribution services to be considered. This temporary right relates to the period within which the use can be created such that even after this temporary right ends in 2020 those properties where there has been a change of use will be able to continue that use.

Note that the right will not apply if the proposed site is or forms part of a number of types of designated site specified in the GDPO. It will also not apply if the building is a listed building or within the curtilage of one.

Comments

The policy to allow permitted development rights for the change of use of office buildings to residential was first introduced in the context of an economy struggling to recover and the government's desire to stimulate development rapidly. It was particularly focused on the issue of office developments that had outlived their useful economic life. It would now seem to be driven by the growth agenda for housing delivery but this has squeezed the office market which has created greater pressures on supply and rental levels.

The policy has generated substantial controversy, which continues. In the recent debate in the House of Lords Committee on the Housing and Planning Bill, the Lords welcomed the provision in the amending order which would allow local planning authorities to consider noise impacts on new residents from existing businesses in the area. Noting that while the policy was well intentioned the Lords also commented that, "the consequences have been perverse in some parts of the country, particularly in London" and the policy was referred to as, "Mary Portas in reverse". The Lords called for an urgent government rethink on the position before Report stage. With the Amendment Order due to come into force this leaves little time for any rethink.

It is also worth noting that the Amendment Order makes no provision in relation to one of the proposals which had been suggested. The October 2015 press release had stated that the new permanent permitted development right would allow office buildings to be demolished and replaced with new buildings for residential use. It stated that further details would be provided in due course. This is not part of the current order and will therefore need to wait for further legislation.

Endnote

Currently, there are 17 local authorities in England where individual buildings, roads or zones are exempt from the current office to residential permitted development right, including:

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